There’s No Antitrust in Baseball. But Why Not?


MLB’s century-old antitrust immunity under assault from several directions.


      • Minor leagues teamed up after MLB severed affiliations, but Second Circuit ruled against them.
      • In Supreme Court petition, minor league teams call MLB’s immunity an “aberration.”
      • Meanwhile, Republicans and Democrats find themselves in agreement.

Two minor league baseball teams have asked the U.S. Supreme Court to make a call on the common-law “baseball exemption” to antitrust enforcement, which they call a judicially-created “aberration” and possibly the Court’s “longest-lived mistake.” The Second Circuit rejected their challenge to a decision by Major League Baseball to shrink the farm league system. Minor league clubs maintain MLB colluded to break off their affiliations, driving many of them out of business.

Owners of the Tri-City ValleyCats and The Norwich Sea Unicorns seek to overturn their case and precedent going back more than 100 years. In 1922, the Supreme Court held that “‘exhibitions’ of ‘base ball’ d[o] not implicate the Sherman Act because they d[o] not involve interstate trade or commerce.” (Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs, 259 U.S. 200, 1922). The clubs drew some inspiration for their petition from Justice Brett Kavanaugh who wrote in a concurring opinion in 2021’s NCAA v. Alston case that such immunity “would be flatly illegal in almost any other industry in America.”

Major League Baseball teams, the minor league teams argue, “[A]re free to conspire to raise prices, inflate their earnings with monopoly rents, or (as they did here) enter into a horizontal agreement to reduce output and boycott other businesses. There is no democratic consensus for this immunity: Congress never enacted a law exempting professional baseball from the Sherman Act. Nor, as the United States observed in this case, is there any policy rationale supporting the exemption.”

The teams call this case an “ideal vehicle” to revisit the baseball exemption. Without it, they say they would have been able to challenge MLB’s “naked horizontal agreement to restrain competition.”

“Having destroyed forty businesses in one fell swoop, MLB will only be further emboldened if the Court denies review here,” the petition reads.

It was filed on Sept. 18. MLB has until Oct. 23 to respond, but has asked that the deadline be moved to Nov. 22.

This summer, a group of staunchly conservative Republican senators — Sens. Mike Lee (R-UT), Marco Rubio (R-FL), Ted Cruz (R-TX), and Josh Hawley (R-MO) — introduced a bill to end MLB’s antitrust immunity. In March 2022, the staunchly liberal Sen. Bernie Sanders (I-VT) announced a similar measure.

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